April 18, 2007

Dividing 5-4, the Supreme Court on Wednesday gave a sweeping -- and only barely qualified -- victory to the federal government and to other opponents of abortion, upholding the 2003 law that banned what are often called "partial-birth abortions." The majority insisted it was following its abortion precedents, so none of those was expressly overruled. The dissenters strenuously disputed that the ruling was faithful to those precedents.

Justice Anthony M. Kennedy wrote for the majority in the first-ever decision by the Court to uphold a total ban on a specific abortion procedure -- prompting the dissenters to argue that the Court was walking away from the defense of abortion rights that it had made since the original Roe v. Wade decision in 1973 recognized a constitutional right to end pregnancy medically. Roe v. Wade was not overturned by the new ruling, as some filings before the Court had urged.

More at the link. The case -- Gonzales v. Carhart -- is here. I'm about to be off-line for a while, so you will have to discuss this without me.

ADDED: Justice Thomas, joined only by Justice Scalia, concurs, in an opinion that's easy to read in full:

I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) . I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973) , has no basis in the Constitution. See Casey, supra, at 979 (Scalia, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S. 914, 980–983 (2000) (Thomas, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709 , n. 2 (2005) (Thomas, J., concurring).

I note that this does not state that Roe v. Wade should be overturned, only that it was wrongly decided. The question of stare decisis is a separate one. It is also interesting that Thomas thinks perhaps the Commerce Clause might not support the congressional regulation of abortion. Under current doctrine, it seems rather obvious that Congress has this power. Providing abortions is a commercial activity, and, taken in the aggregate, it has a substantial effect on interstate commerce. But Thomas has not supported that doctrine.

MORE: The reason Thomas brings up the Commerce Clause, you should understand, is, I think, that he supports overruling Roe v. Wade and relies on the idea that the issue of abortion will, in that event, devolve to the states. But if Congress can regulate abortion, the federalism-based assurances we keep hearing are meaningless -- unless somehow you have a way to believe that Congress would resist this ripe political opportunity.

95 comments:

Let me ground the debate properly by pointing out that despite the hysteria from FreeRepublic and Feministing, this is emphatically not the thin end of the wedge that will topple Roe-Casey. As Orin points out, Justice Kennedy hasn't flipped sides in this case: as far as Kennedy is concerned, he's just "appl[ying] Casey, and held that the law [at issue here] does not impose a "substantial obstacle" under the Casey standard." In essence, this ruling is exactly what one would expect if Kennedy stuck to his dissenting position in Stenberg. Nobody is more surprised than I am that Kennedy stuck to his guns, but that's what happened here.

"Under current doctrine, it seems rather obvious that Congress has this power. Providing abortions is a commercial activity, and, taken in the aggregate, it has a substantial effect on interstate commerce."

Paul, it's comments like that that I had hoped to forestall by my first comment... This court is not going to overturn Roe. Kennedy certainly isn't, and note that Roberts and Alito did not join the Thomas concurrence.

Mike said..."'Providing abortions is a commercial activity, and, taken in the aggregate, it has a substantial effect on interstate commerce.' I don't see that."

See Katzenbach v. McClung, 379 U.S. 294 (1964) (holding that "Congress acted within its power to protect and foster commerce in extending coverage of Title II to restaurants serving food a substantial portion of which has moved in interstate commerce, since it had ample basis to conclude that racial discrimination by such restaurants burdened interstate trade"). Prevailing commerce clause jurisprudence has a very, very wide reach. Not wide enough to reach abortion, though, in my view, per links in my previous comment. I think Ann perhaps overstates somewhat just how easy the argument is, but you shouldn't understate it either.

I'm not a Constitutional scholar (obviously) but speaking as a layperson I view the wide interpretation of the commerce clause as a power grab by Congress, abetted by the Courts, not sensible jurisprudence.

Am I correct that the act upheld allows D+E's where the fetus is ripped apart, but does not allow D+E's where the fetus's skull is crushed and it is taken out intact? And the supporters have the audacity to call one more "gruesome and inhumane" than the other?

Much is made of the opinion that partial birth abortion is sometimes medically necessary. I’m not studied on the topic, yet this seems unlikely. If the child is practically delivered, then what complications could arise from simply delivering the child alive? With the addition of cesarean section and the like, the LIFE of the mother seems well protected.

If my instincts are correct (they usually are)… The child is left partially in the womb for legal, not medical purposes. That is, there is no medical reason to keep the child partially within the birth canal other than the legal necessity to keep infanticide technically abortion.

Fitz - from my understanding the skull is crushed in order to allow the fetus to be removed. The head is the largest part of the fetus and the cervix is not always fully dialated for these procedures. I seriously doubt intact D+E was designed just to prevent liability.

Also, the regular D+E involves pulling the fetus out in pieces, which means several instances of the doctor inserting instruments into the uterus (I think the opinion says this can take up to 15 tries to get all of the fetus out). Removing the fetus in one piece, and all at once, greatly lowers the chance of complications from the procedure (such as internal bleeding and damage to uterus, etc.)

I've just quickly skimmed the opinion. The part that struck me as significant, even though not particularly new, was the use that Kennedy made of the concept of uncertainty. He accepts arguendo the principle that any retriction on a woman's abortion right that subjected her to a medical risk to her health would be, for that reason alone, unconstititional under Roe/Casey unless the statute created an exception to avoid that risk. He also notes that Congress, and presumably a state legislature, is not required to accept a court's factfinding on the issue, and can decide for itself the extent and nature of any such risk that a proposed ban on an abortion procedure might pose. With respect to the D&E procedure at issue here, the opinion then notes that medical opinion is divided and thus there is considerable uncertainty about whether the D&E procedure is ever medically necessary. Because of that uncertainty, the legislature gets to decide, and its decision is not subject to judicial second-guessing so long as that state of uncertainty exists.

Since I've only skimmed the opinion, a closer read may show that more was in play here than that. But a "certainty" criterion has the potential to create a large hole in the "abortion right," given that medicine is more art than science and so many of the issues about abortion and health are suffused with value judgments if you just scratch the surface. It remains to be seen whether this is just a one-off kind of decision, or whether (as the dissenters say) it marks a sharper turn in the Court's abortion jurisprudence than the majority is prepared to admit. If Roe/Casey are ever to disappear, I think it's quite unlikely to happen in any dramatic, "those cases are hereby overruled" kind of way. Instead, it is more likely to be a slower chipping away at the edges, until the edges subsume all but some tiny core where a vestige of an "abortion right" would live on.

I agree that the Court's current understanding of the commerce clause permits Congress to regulate in this area. I also agree with those who believe the Court has gone too far in expanding the reach of the commerce clause. Having said that, it would have been terribly ironic for the Court to hold the law unconstitutional on commerce clause grounds when it was the Court that made a federal issue of abortion in the first place.

It's actually likely that, given Justice Thomas's concurring opinion in Lopez and his mention of the commerce clause in the concurrence, that he would have struck down the law on commerce clause grounds. I wonder why that argument wasn't made.

Having said that, it would have been terribly ironic for the Court to hold the law unconstitutional on commerce clause grounds when it was the Court that made a federal issue of abortion in the first place.Yes, I was thinking that too, but they did the latter on a (spurious) rationale of a federal constitutional right, not under the auspices of the commerce clause. If you accept the existence of the right of privacy (and other emanation, sparks and fairies) it is, by virtue of the Fourteenth Amendment, applicable regardless of any state's opinion of it.

Providing abortions is a commercial activity, and, taken in the aggregate, it has a substantial effect on interstate commerce.

Sigh. I realize that those, like me, who believe in limited federal power under the Constitution lost the argument years ago, but it's still depressing to hear things like this. What, exactly, is the "substantial effect on interstate commerce" arising from women having partial-birth abortions?

Thomas is being shrewd. This concurrence will be out there waiting as a trap for the not so clever. Sometime another abortion case will come up briefed on the Commerce Clause issue he refers to. The liberal justices will see the Commerce Clause issue as a way to pull Thomas into a majority to strike down the restrictions. Then shazam! Thomas has a strong Commerce Clause precedent for future usage in other areas of the law.

The funny thing is, yesterday reading Scalia's Zuni School District dissent, I was thinking to myself "bloody hell, what's he going to do to trump this in his Carhart dissent?" I was just assuming that Kennedy would flip and we were going to lose this one, too. Delighted to be wrong.

homericsimile said..."Am I correct that the act upheld allows D+E's where the fetus is ripped apart, but does not allow D+E's where the fetus's skull is crushed and it is taken out intact?"

That is correct.

Fitz:"'Also: pay close attention to who didn't join Justice Thomas' concurrence. That means something.' Do you think so? I'm hoping this is just the two NOT showing all their cards.'"

A couple of commenters at Volokh have suggested something similar - maybe they're trying to keep Kennedy on board, maybe they're just keeping their cards close to their chests. And that's possible too, so I hope you're right.

Bob said..."It's actually likely that, given Justice Thomas's concurring opinion in Lopez and his mention of the commerce clause in the concurrence, that he would have struck down the law on commerce clause grounds. I wonder why that argument wasn't made."

Look at who brought this challenge. That should tell you why the federalism argument wasn't raised by litigants.

I disagree about the Commerce Clause. Lopez involved having a gun on school grounds. In order to have a gun, you have to buy a gun, or steal a gun that was at one point sold. Right? I mean, anything is commercial if you think about it long enough (even, apparently, part of some farmer's crops that he grew himself to eat, himself).

In an abortion, if I go to an abortion doctor and get one (difficult, but this is a hypo), and the doctor has an office in my city, and she performs the service my city, that's not interstate commerce.

We can't say for sure what Thomas is telegraphing here, but, for my money, he's saying that the correct federal view of abortion is that it is a state-by-state, and even a locality-by-locality issue.

{Also}Justice Ginsburg dissent also accuses the majority of having a "way of thinking" that "reflects ancient notions about women's place in the family and under the Constitution --ideas that have long since been discredited."

The aborted fetuses go into the trash. The courts have long recognized that the interstate flow of trash to landfills is commerce that can be regulated by Congress.

That's an excellent answer. It deserves an A on any law school exam. Also, it illustrates perfectly the problem of having lawyers decide these issues. I'd prefer nine people pulled randomly off the streets. That might inject a bit of common sense into the debate.

This is Seven Machos, by the way. I have no idea why my account isn't working.

Kevin: One of my profoundly insightful professors always said that the Commerce Clause will eventually extend to whatever Congress wants, because Congress is that powerful. I never could tell how he felt about that.

I think it's terribly wrong and a terrible idea. The federal government is a government of limited, enumerated powers. When a butterfly flaps its wings in China, it may or may not end up affecting a flower shop in West Virginia. I say it won't, and, at any rate, it's not in any reasonable way Interstate Commerce.

hate to throw cold water on this but the number of PBAs are none as there is, really, no such medical term. the IDEs performed are a minor percentage of the abortions performed in the US.

I'm pleased to see so many doctors on our supreme court...and there are some of course who just a couple weeks ago "weren't scientists" so they couldn't or shouldn't decide Mass v. EPA but now they are doctors and females rolled in together.

Note that I don't agree with the result of my fabulous analysis. I'm just giving you the method by which this will be rationalized by judges should the question get asked. I'm fully in support of a more limited Commerce Clause doctrine, though I'm not sure where the line can be effectively drawn now that the hog of big government has long since excaped from the sty fence retraints of the constituion.

I disagree about the Commerce Clause. Lopez involved having a gun on school grounds. In order to have a gun, you have to buy a gun, or steal a gun that was at one point sold. Right? I mean, anything is commercial if you think about it long enough (even, apparently, part of some farmer's crops that he grew himself to eat, himself).

Thomas wrote a separate concurrence in Lopez where he stated that the court should abandon the "substantial effects" test and return the definition of commerce to its original interpretation: "selling, buying, and bartering, as well as transporting for these purpose."

He could have made a strong statement about the consistency of his originalist values. He didn't.

Eric said..."I disagree about the Commerce Clause. Lopez involved having a gun on school grounds. In order to have a gun, you have to buy a gun, or steal a gun that was at one point sold. Right? I mean, anything is commercial if you think about it long enough (even, apparently, part of some farmer's crops that he grew himself to eat, himself). In an abortion, if I go to an abortion doctor and get one (difficult, but this is a hypo), and the doctor has an office in my city, and she performs the service my city, that's not interstate commerce."

The argument - this is from McClung, as I indicated earlier - presumably goes like this: just as the Civil Rights Act could be applied to a restaurant serving purely intrastate customers if the meat served by the restaurant moved in interstate commerce, so an abortion doctor must obtain medical supplies that move in interstate commerce, and thus Congress can legislate on the subject. (There's also a §5 argument that Jack Balkin's advanced, FWIW.) Now, I think that argument's spinach, and even if one accepts McClung, I think that's a reach. But reasonable people can (and do: case in point being our hostess) disagree on that. I think the court can and should strike down this law on commerce clause grounds in an appropriately-presented challenge, and I think it can do so while leaving McClung at least largely and probably completely intact. However, Justice Scalia has an at least somewhat more robust vision of national power than do I (not withstanding his joining the concurrence today), and I think you're going to discover that so too do Justice Alito and our Fearless Leader. So I don't expect the court to go much further than it did in Lopez in confining Congress' commerce clause power. Again, I hope to be proven wrong; I'd love to see them overrule Wickard and essentially trim the rule back to NLRB.

hdhouse said..."[T]he IDEs performed are a minor percentage of the abortions performed in the US."

Harry, if that is truly so, today's ruling will be greeted with deafening indifference by pro-choice groups everywhere. CNN will not fret that the "5-4 ruling could open door to revisiting Roe v. Wade," NARAL will not announce that "Supreme Court Federal Abortion Ban Decision Marks Setback for Women's Health and Privacy" and most of all, Feministing will not have a headline declaring that "We're fucked." Given that this ruling is extremely narrow - holding only that a law banning intact D&E (not even all D&E procedures) survives a facial challenge (practically inviting an as-applied challenge) under Casey - if the conduct the law reaches is some tiny, rare occurrence, then today's ruling isn't a big deal. We will see how big a deal it really is by the reaction of pro-choice groups. If they act like this is the end of the world, we'll know that their agenda is really abortion on demand, all circumstances, no exceptions, at any time prior to every part of the child clearing the labia majora.

Your comparison to Mass. is totally without merit, as others have pointed out.

Kathleen,I know you meant for that to be really witty and ironic, but in fact it says more about you than about Ann. You're assuming - with no basis whatsoever in the present post, and contrary to everything she's said on the subject before - that she agrees with this ruling. You're so desperate to attack Althouse that you'll latch on to anything to do it. Pathetic.

Standard IANAL disclaimer. My understanding of the real life aspect of this ruling is (and I am simplifying here) that it will prohibit only one type abortion procedure that is rarely used. Do I have it about right?

I think the dog that isn't barking so far in this thread is that Roberts gave the opinion to Kennedy to write. Is Roberts trying to lock him in for the future? Was he trying to make sure Kennedy didn't change his vote to replace O'Connor? (And as others have said, I'm really surprised he didn't flip.)

The desire for result-oriented rulings has pretty much destroyed all consistency on both sides of the ideological divide. They find whatever they need to find (even if it's opposite of what they found last week) to end up with the verdict they want. The Queen of Hearts would be so pleased.

Robert - well, he really only had two choices, Kennedy or himself. He couldn't give it to Scalia or Thomas, because you know what kind of opinion they'd write, and it'd lose Kennedy. And the conventional wisdom says that you give the assignment to the weakest (i.e. most tentative) member of the majority, because that will tend to locks them in, and will ensure that when the opinion circulates, it doesn't alienate the weakest member of the majority because obviously they're not going to write an opinion that they themselves can't join.

That's correct. However I feel like the public (and politicians) will continue to be confused about the different types of D+E procedures and the reasons why they are used. Also it may be a stepping stone to broader bans on procedures. I'm still confused as to why this statute only bans as "inhumane" the procedure where the fetus's head is crushed and it's removed intact, and not the procedure where the fetus is removed in pieces - but this may have a lot to do with why the court decided the statue was not a significant obstacle or "undue burden."

Leaving to one side how I feel about the morality of abortion, I fail to see how this law meets the rational basis test. Congress is entitled to find facts, but not to make up facts. It shouldn't be able to 'find' that the procedure is never necessary when doctors say that it sometimes is. They shouldn't be able to 'find' that no medical school teach it, when clearly many of them do. Don't believe me? Ask a medical student. This law is arbitrary and bullshit and should be found to be irrational, regardless of how one feels about abortion.

A small percentage of 1.3 million is still a goodly number. Every 1 percent = 13,000. More than you can shake a Metzenbaum scissors at.

Roger,

More info re: late-term procedures begins in 5th paragraph of Kennedy's opinion. (My guess is that he includes these descriptions AGAIN because of the previous majority's inclination to make the procedure sound like pimple removal.)

I think that abortion would end up being decided by the states instead of Congress, should Roe vs Wade be overturned. Not because Congress is committed to federalism (some people in Congress are, but not most), but because abortion bans are politically VERY dangerous for the people proposing them, in most states and Congressional districts. The lip service the Republican Party has paid to federalism gives political cover to all those Republican politicians who would much rather toss this particular political hot potato to their compatriots at the state level.

Also, of course, there's the whole filibustering thing -- lots of luck getting a vote on an abortion ban when you can't even get a vote on a controversial appeals court nominee.

Wade -- For one thing, it's very difficult for a law to not meet the rational relations threshold.

Secondly, let's apply your theory to some other laws, just off the top of our heads. You can't have more than a certain number of strip clubs in Times Square. Buildings in Washington, D.C. can only be so tall. A restaurant must get a license to serve alcohol.

Thirdly, it seems like maybe you are leaving one of the parties to an abortion. I'm sure this is just an oversight on your part.

vrse -- Indeed. Let's do leave it to the States. Have you considered the implications of Thomas's concurrence in this regard? How many states would allow partial-birth abotion, let alone abortion at all, but for Roe?

Another goofball lefty trying to point out a delicious irony that isn't an irony at all, and therefore looking silly.

Could we please get some better leftist arguments than the ones presented here? Althouse?

Eric:1) the standard is higher when it concerns fundamental rights. It is lower when you are limiting the height of buildings.2) the rational relation test is different from Congress' ability to find facts. Finding made-up facts is ridiculous.3) It is not a photo of Matthew McConaughey

Wade -- You are truly confused. When a court brings up rational relations, it means that there are no fundamental rights at issue. It's just a garden-variety law that says a certain class of people must do certain things in certain circumstances.

Fitz said..."Kathleen gently chides professor Althouse to return to the fold of true and pure feminists (even though our good host has yet to opine any length)"

She had two posts around the time of oral argument making pretty plain what her view on the case was, and spent an entire bhtv segment talking about it with Amy Sullivan. Although she has yet to opine on the opinion, it isn't accurate to say she hasn't opined on the case.

Wade Garrett said..."[M]ore than 50% of women support abortion rights, and certainly more than 50% of women of child-bearing age support abortion rights. Your numbers are misleading."

I'm calling that. According to Pew, 11% of women think abortion should never be permitted, 31% think it should be illegal except in case of rape, incest or to save the mother's life, and another 21% think it should be "more limited" than is presently. That adds up to 63% who want to see more restrictions, and an absolute minimum of 42% who want regulations on abortion which are flatly incompatible with Roe-Casey. Only 35% of women support the status quo on abortion.

And all of this is accepting, arguendo, the framing of abortion as being nothing more than a "female" issue, which I reject: although women have a disproportionate interest in it, abortion kills male and female children alike and (in this country) indiscriminately. It's thus accepting the framing of one side of the debate (a point I assume is not lost on Ann) to assume that men's views should be excluded.

The 11% of women who think that abortion should be permitted are akin to the 11% of dentists who believe that sugared gum and frosted flakes are good for your teeth, or the 35% of our country who believe that the earth was created in six 24-hour days.

2. You don't know anything about that creation the earth, and neither do I.

3. We are a nation of laws, not men and not women. If a community decides that it doesn't want abortion in the community, or partial-birth abortion, there's nothing in the Constitution preventing that community from outlawing the practice. There is no penumbra.

4. Correct me if I'm wrong here, but didn't the Congress pass this law? And didn't the president sign it? And aren't those people elected by majorities?

Wade Garrett said..."The 11% of women who think that abortion should be permitted are akin to the 11% of dentists who believe that sugared gum and frosted flakes are good for your teeth, or the 35% of our country who believe that the earth was created in six 24-hour days."

My “numbers” were not meant to be accurate, rather my post was meant to demonstrate that Kathleen’s (and your) stance that abortion is a “women’s issue” are misleading themselves. Large numbers of women are against abortion.

Likewise: my point about sexually active young men being abortions strongest supporters is supposed to reveal the self interest involved and juxtapose it to “men who care about women” rhetoric.

People can (and do) argue the numbers. Nevertheless I think my original point stands.

Consider what happened in Colorado. Communities - to use Eric's term - passed statutes prohibiting discrimination against homosexuals. These communities had large gay populations. So what to conservatives do? They get christians from rural parts of the state, where no gay people live, to pass a law at the state level that prohibits communities from passing laws that protect gay people.

This state law gets overturned by the Supreme Court, and conservatives praise Scalia for writing a scathing dissent in which he basically asks, how DARE you overturn a state law that prohibits communities from protecting their citizens?

And this from conservatives, who claim to value individual liberty and local government.

If you ask me, its more that Christianists like telling other people how to live their lives and they like to hate people who disagree with them.

Wade: Your profile says you're 62 but last month (March 29th, to be exact) you told us you were 27 and that "its perfectly legitimate for people of my generation to complain about the Baby Boomers taxing the country to spend money on themselves and then leaving us with the bill."

See, some argue that the States should decide this very important question (never mind the whole "fundamental rights" bullshit) completely missing the point that the moment Roe/Casey go down federal bans could and would follow, much like the current ban.

Althouse's piece misses this point, either deliberately or foolishly, arguing further that we should actually welcome discussion about appointing strict constructionists that would probably uphold federal bans of this kind... Where would that leave your precious States?

But then again, she's the Feminist and I'm the lefty goofball. It feels so good to be wrong!!!

Except if it moves two or three inches further when they vacate its brain, in which case it's infanticide. Those couple of inches make all the difference to you, it seems: same child, same age, same development, and it all comes down to whether you've deliver three fifths of it or seven eighths. Presumably you concede that if you do if after delivery, that's infanticide - but if it isn't infanticide when the entire body but not the head's delivered, Wade, when does it become infanticide? Where's the line? Is it still a "choice" rather than infanticide if it's mouth is out? What about the tip of its nose? Does it only become infanticide when you have to look it in the eye while you kill it, Wade, or do you find it easier to deny its humanity if you never see its face before you rip out its brain?

IMO, it seems as though Justice Kennedy is almost bending over backwards to explain how limited the PBA ban is.

If the baby doesn't pass a landmark point while still live, it's not banned.If the doctor doesn't proceed through the birthing canal, it's not banned.If the doctor doesn't intend to have the baby pass a landmark point in delivery while still live, it's not banned.

Where I think the Ginsburg dissent fails is that the ban does little to prevent a mother from obtaining an abortion, just the method by which it is performed. (I agree with the majority on the interest provided by the Casey plurality in upholding the life of the child, FWIW.)

The actual consequences of the ban are negligible, as there are numerous techniques through which a second-trimester abortion may be obtained. Given the burdens of establishing mens rea, I daresay that the number of "accidental" Intact B&E's will rise as a result of the ruling.

Of course, I'm one of those crazy guys who thinks pregnancy is generally a consequence of a choice, rather than a choice itself....so I don't have much sympathy for the Respondents.

vrse said..."go read Althouse's NYTimes piece... [S]ome argue that the States should decide this very important question ... completely missing the point that the moment Roe/Casey go down federal bans could and would follow, much like the current ban. Althouse's piece misses this point."

Did you read his reply to you at all? Justice Thomas' concurrence strongly hinted at his amenability to a commerce clause challenge (which you'd expect from his Lopez concurrence), but that wasn't raised in this case. If you think Ann "missed" that point, after writing about federalism and federal power for twenty years, you're out of your mind. A "strict construction" of the commerce clause would deprive Congress of power to implement a federal ban, and while most legal conservatives aren't actually strict constructionists, most would agree that the commerce power doesn't reach a total abortion ban. Certainly I would oppose a federal ban, even while encouraging a state ban.

Well, that’s the crux is it not?Roe actually set up as system that talked about viability and allowed regulation in the second and third trimesters. The pro-abort used the health exception and opened it up so you could drive a truck through it. The real interest is the state protecting innocent human life. National reviews editors have a good piece up

“Partial-birth abortions are not really worse than other methods of late-term abortion. There is indeed something irrational about concluding that a method of killing a seven-month-old fetus should depend on the location of his foot. But just who is responsible for making a fetish of location in the first place? It is the Supreme Court itself that has declared — with no support in the Constitution — that what distinguishes a fetus with no claim to legal protection from an infant with such a claim is whether it is in the womb. The child’s stage of development does not really matter in this jurisprudence: A premature baby has more legal protections than a full-term fetus. In an earlier abortion case, Justice Stevens himself has suggested that a “9-month-gestated, fully sentient fetus on the eve of birth” is not “a human being.”

“Legislators seeking to ban partial-birth abortion are, therefore, trying to work around the irrational policy the Supreme Court, with the blessing of these dissenters, has created. They are trying to mark an outer limit to that policy: If children within the womb are not going to be protected, then at least children partway outside it should be.’

The 11% of women who think that abortion should [sic] be permitted are akin to the 11% of dentists who believe that sugared gum and frosted flakes are good for your teeth, or the 35% of our country who believe that the earth was created in six 24-hour days.

Apparently you suffer from the delusion that moral beliefs are scientifically provable -- that it is possible to scientifically determine whether a woman has the right to control or body or whether a fetus has the right to live. Because I can't imagine why else you're equating the moral beliefs of pro-lifers and pro-choicers -- which you cannot prove are right or wrong -- with the objectively right/wrong beliefs of scientists/creationists.

It is, in any case, a scientifically demonstrated fact that a large majority of American men *and* women want abortion to be more restricted than it is now. You're welcome to think that that large majority contains a lot of annoying moralizers and idiots, but that doesn't change the *fact* that your belief in majority support for unrestricted abortion is, objectively speaking, completely fucking wrong.

Congress would never pass a law banning abortion. There isn't enough support. There are enough conservatives not willing to impose such a federal law. When Roe gets overturned, almost all the states will allow abortion. There will be a sliding scale of rules and laws.

A majority of people in this country support abortion rights, but with a lot more restrictions (such as only allowed in the first term) or to the point of current viability (22 weeks). These majorities will show themselves in the states and new laws will be passed with these restrictions. Then abortion will fade into the background - the majority having spoken - only to be adjusted from time to time as science increases the survival rate of the unborn. Roe will fade into history as the Dred Scott of its time.

It is also interesting that Thomas thinks perhaps the Commerce Clause might not support the congressional regulation of abortion.

That's just because he's sadly lacking in the imagination a Justice should have. For example, if abortion is legal, a butterfly could land on an abortion doctor's sign, but if abortion was illegal, it would have to land on the lawn. Since (cf. the Butterfly Effect) a single flap of a butterfly's wings can cause a hurricane, and a hurricane can disrupt interstate commerce, clearly Congress has the right to regulate abortion. See, I'm not even a lawyer, and I can do it.

Rather than focusing on the more obscure and less realistic concurrence by Thomas on the commerce clause & federalism: I think it more germane to point out that Anthony Kennedy’s decision itself is open to an (inevitable) challenge to the (big enough to drive a truch through) “health” exception expanded in previous precedents.

“The fact is that Anthony Kennedy makes clear that he is open to a case where the litigant asserts a health exception to partial-birth abortion. He makes this clear in several ways, including distinguishing between a "facial" vs. "as-applied" challenge, and all but invites such a challenge. That is, he is soliciting a health-exception challenge. Kennedy also telegraphs how he'll vote — with the other four activists. In short, he says the federal statute, which excepts partial-birth abortion in cases that threaten the life of the mother (thereby narrowing the health exception), is consistent with past court rulings, but he is prepared to reverse course in a future case involving non-life threatening health exceptions. Maybe today's decision will temporarily chill doctors from performing partial-birth abortions. But the emphasis here is on word "temporary."

IMO, Your insight/prediction is spot on. One implication is that the Pro-Life community must not get fooled into thinking it's all about Roe. When Roe is overturned, we will have to fight it out in the states.

If we are to be successful, we need to, as GWB has said, work to change people's hearts and minds about abortion. Forget about the hysterical NARAL and NOW crowds. We need to talk to the undecided who have plenty of doubts and moral confusion.

Wade Garrett said:Consider what happened in Colorado. Communities - to use Eric's term - passed statutes prohibiting discrimination against homosexuals. These communities had large gay populations. So what to conservatives do? They get christians from rural parts of the state, where no gay people live, to pass a law at the state level that prohibits communities from passing laws that protect gay people.

The interesting thing about this is that it's an example of how the power of the states seems to run at cross-purposes to the self-governance ideals of Federalism. If we're going to try to argue that the commerce cause has been overextended and that certain regulatory powers ought to be returned to the states, we need to be sure that the states aren't too big to function as "laboratories of democracy". Certainly the states we have now are larger and more heterogeneous than those Framers knew.

It's even worse than you state. It's not just that the butterfly in China has no practical effect, but far more importantly the words "or anything having an effect on" are not actually in the Commerce Clause.

Or (reading a bit further down the page) exactly what Bob said. If it's not the actual buying, selling, bartering, sending, or receiving of goods or services between parties in 2 different states, it's either NOT commerce or it's NOT interstate.

If you want to forestall someone's comments, go try it on your own blog, you pompous ass.

... says paul, in an attempt to forestall future comments of simon's.

Why you got your panties in a bunch over simon's comment is a mystery to me in any case. He was quite obviously using "forestall" in the "get ahead of/anticipate" sense, not the "prevent" sense. I.e., he was trying to avoid having to deal with the inevitable "OMFG abortion will be banned" response by arguing that the decision didn't actually represent a significant change to the law.

Well Eric, aka 7 nachos, if there ever was a testimonial for late term abortion you'd be it.

Well duhhh. You can frame the debate anyway you want but it will still boil down to pro choice or anti-abortion. One side or the other will just wrap the package in fresh paper.....

So let's take this idiocy of yours a step further...as you try and wrap this up in the commerce clause but you have the bow on the wrong side of the package.

You and others equate the geographical position of the potential customer in relation to the service offered as a qualifier for interstate commerce. Unless the offerer of the service hangs out a big sign that says intra-state sales only you are on the horns of the problem you created. One need not actually partake in commerce interstate to have fallen under interstate regulation. You see, the distance factor doesn't matter and if the distance factor doesn't matter, the arbitrary state line doesn't matter either.

You hold out a service to all comers. Is your service offered only intrastate until someone from out of state crosses the state line to interact with you? Nope. Go re-read basic contracts.

Then the opposite situation is also true. State "A" bans IDEs. Neighboring state "B" says its still ok here. Woman from state "A" seeks an IDE. The offer from state "B" is clear and the agreement is made the very second the woman says I'm on my way. The distance factor is not relevant.

j...the actual number if IDEs is and has been far under 1000 for a number of years. Kansas is the only state that actually keeps track....so the hysteria is grounded in hysteria not fact..."Only Kansas reports figures on abortions specifically identified as partial-birth abortions. Kansas reported 58 PBAs in 1998, 182 for Jan.-Oct. 1999, and none since Oct. 1999 (through the end of 2005). This is out of 11,000 to 12,000 total abortions per year reported in Kansas. Of the 240 reported PBAs in Kansas, all but 7 were for out-of-state residents." http://www.johnstonsarchive.net/policy/abortion/pba.html

yes it might be to you 7 nachos. however if you read the opinion, you will get the idea that kennedy views the offerer of services and not the relative position of the seeker as the determinate.

look at the Kansas statistics..most of these abortions were administered to woman from out of state. kansas certainly doesn't advertise the procedure. i doubt that there is any "come to kansas for your late term abortion" literature going interstate.

so it must be that having the goods and services simple available without any language that bars any one from outside the state from partaking is subject to legislation on the federal level. i can't see what else can be taken from this.

and as to what was observed earlier...watch for a few more low hanging fruit attempts to chip away from the federal level rather than work from the state level and hope that the courts uphold it. it is a matter of time on a number of levels.

I agree with Lurker. Either we want the states to be laboratories of democracy, or we don't. The conservatives say that they want them to be, but every time a state passes a law they disagree with, they suggest a Constitutional Amendment prohibiting the states from doing it (allowing flag burning, allowing gay marriage, etc.) Its hypocritical douchebaggery, if you ask me.

Wade Garrett (says) "Either we want the states to be laboratories of democracy, or we don't. The conservatives say that they want them to be, but every time a state passes a law they disagree with, they suggest a Constitutional Amendment prohibiting the states from doing it (allowing flag burning, allowing gay marriage, etc.) Its hypocritical douchebaggery, if you ask me."

Your ignoring the poser of SCOTUS in compelling legal changes that are incapable of being overruled by anything but a consitutional amendment. This applies to flag burning, abortion and (potentially) to gay "marriage".

The conservatives are not stupid...they know SCOTUS heavy hand will come in and rule. So the calls are a pre-emtive attempt to send a signeal to the court (OR) a post decision attempt to assert majority rule over the courts dictat. (as is the case with flag burning or abortion)

I would remnd you that the original PBA ban was a Nebraska Consitutional amendment struck down by the SCOTUS. This also applies to the multiple marriage amendments.

Conservatives are more than happy to work within federalism. Decisions like Abortion, PBA, or the Colorado Romer decision show the penchant of liberal judicial elites to overule State goverments and impose dictates that are incapable of being thwatrted by anything except Con-Amend, or further court precedent.

Liberal judicial elites? Really? Really? Its funny how any judge that overturns a law passed by Republicans is a liberal elitist, even when, by so doing, they support local decision-making and individual rights.

"Liberal judicial elites? Really? Really? Its funny how any judge that overturns a law passed by Republicans is a liberal elitist, even when, by so doing, they support local decision-making and individual rights."

Yep..thats right Garrett, the whole of federalism constructionist/originalsit jurisprudence can be boilded down to "we dont like your decision"

Way to thwart my point...

Perhaps this will help.

With all the handwringing over Gonzales v. Carhart It is important to note that the United States has some of the most liberal abortion laws in the world. This is the case even when compared to abortion laws in western Europe. This is demonstrated when one contrasts the differences between the American solution and the European style solution. The American version resulted from the Supreme Court deciding the issue while the European solutions were formed by their legislatures.

America > No regulation of abortion permitted for the interest of preserving the life of the fetus until viability at 18- 24 weeks (i.e. 6 months)

Europe > All of the western countries reviewed allowed regulation in the interest of the fetus beginning around 10-12 weeks. Sweden latest at 18 weeks

America >No waiting period permitted, even 24 hours is interference with women's freedom of choice.

Europe >Brief waiting period before request for for abortion and the procedure.

America >No alternatives to abortion will be given to women as part of abortion process.

Europe > Women will be informed about alternatives to abortion, including #1. adoption. #2. maternal assistance provided if the women chooses to bear the child.

Europe > Does not have a large private, profit- making abortion industry Abortion procedures are carefully regulated. One of the regulations is a limit to the percent of abortion procedures at any given site.

America > The courts speak about a "constitutional right" to abortion. The U.S. is the only country that states its a "right" to have an abortion. The values advocated are #1. individual privacy. #2. woman's sovereignty over her body

Europe > Statutes start by stating an affirmation of sanctity of human life, but state an abortion is freely available in "distress" (France), or "hardship" (German) in early pregnancy. The values advocated are #1. respect for human life #2. compassion for women in vulnerable circumstances

Good job on your support of Roberts and Alito, Ann! I hope you love the rightwing jurisprudence that will help stymie our nation over the next 50 years. Maybe as part of the cleaning up the mess made by the Bush administration, we can annul his SC nominations. Sounds like the right idea to me. And you posters that think the judgment of the SC (and yourselves) should take the place of a woman and her doctor as to what procedure is best FOR HER ... may you catch some terrible disease the treatment for which will be put to a community vote. God, you people make me sick! Live your own bloody lives.

Doug, the problem with your theory is that all these ruling can possibly achieve is to place issues like abortion back into the democratic process. So on abortion particularly, you don't have a court that thinks that states MUST prohibit abortion, you have -- at very most -- a court that thinks that states MAY prohibit abortion if their electorates so desire. That being the case, all this rhetoric about being "stymie[d]" just shows you up as someone who either has absolutely no clue what these decisions actually mean, or in the alternative, if you understand what they mean, someone who is pants-wettingly scared of having to actually fight and win at the ballot box. So which is it?